Customs brokers optimistic Contactless Clearance policy will be quashed

Source: Jamaica Gleaner

DUBBING THE Jamaica Customs Agency's (JCA) new Contactless Clearance policy illegal and unconstitutional, the Customs Brokers & Freight Forwarders Association of Jamaica (CBFFAJ) believes it will be victorious in getting the Supreme Court to quash the agency's decision to institute the policy, which is reportedly the first of its kind in the world.

The new policy, which will see inspection of non-commercial cargo being done by the warehouse operators in the absence of importers or agents, was expected to start officially in the island on April 2 (Tuesday), following a pilot which ran from October 2022 to January 2023.

However, the association successfully got the court to delay the start of the policy.

Justice Lorna Shelly Williams on Thursday granted the association an injunction, restraining the agency from implementing the Customs Contactless Clearance Process (CCCP) pending the hearing of an application for permission to apply for Judicial Review, on April 25, 2024.

The implementation of the policy shift has been a bone of contention for the association since July 2022 when it learned of Custom's plans.

The association, which maintained that it had been in the dark about the policy and was never consulted, had objected, forcing a postponement of the policy, resulting in a pilot.

President of the CBFFAJ, Clive Coke, said then that his association was not aware of the rationale for the policy shift and warned that the Customs' deployment of warehouse operators could wipe out hundreds of jobs for freight forwards and customs brokers.

Speaking with The Gleaner on Thursday, Coke again highlighted why the association was opposing the move.

"This is not a best practice, it doesn't protect the interest of importers and of traders because there will be nobody there, based on what they have proposed, to look out for the interest of the traders and it is not supported by the Customs Act," he declared.

As a member of the International Federation of Customs Brokers Association, Coke said he has had dialogue with his colleagues and the process is unprecedented.

"There is no evidence that anything similar to this where you can remove the importer and the agent completely out of the process is happening elsewhere in the world."

Coke said that his association would have supported the policy once an agent for the importer would have been allowed to witness the inspection.

According to Coke, the policy will confuse rather than improve efficiency in the process.

"There is really nothing contactless about the process, Customs still intends to check 100 per cent. The only thing which we notice that would have changed is that they want to remove a licensed customs broker who is a trained professional with the warehouse handlers," he added, noting that globally only five per cent is checked.

Asked about the response he had received from stakeholders about the pilot, Coke said, "I have never heard positive feedback from any of the persons who took part in the pilot, it is all negative."

In the meantime, Coke said he is happy about Thursday's ruling and is feeling optimistic about the judicial review.

"We have been patiently advocating with Customs since 2021, over two years now, to have a serious dialogue with us on how we can move the industry forward and looking at the material which we have put forward, the court will be able to see that what they are proposing, it just won't work, it's going to create a lot of chaos and we have no doubt about it."

The association is seeking among its relief, an order to prevent JCA from implementing the policy on the basis that it is inconsistent with the Customs Act, the Customs Regulations, the Revised Kyoto Convention and the Charter of Fundamental Rights and Freedoms; or in its alternative to, an order quashing the decision to effect the policy.

Among the association's grouse is that approximately 3,000 jobs will be lost if the policy is implemented and that customs brokers and freight forwarders will suffer irreparable harm, with some losing their businesses.

The association is further contending that a system of appointments will assist with improved security, congestion and wait time, rather than excluding the importers or licensed custom brokers.